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Legal Perspectives: Why All the Hot Air About Climate Control?

Over the years, in articles and presentations, I’ve identified several “ugly words” that should never be used in the business of self-storage. On that list has been the term “climate control.” While it may not have to be banished from your vocabulary completely, this phrase must be used with caution. Perhaps give thought to changing the term to “temperature control” or “temperature and humidity control.”

Let’s start with the problem. According to the American Heritage Dictionary of the English Language, New College Edition, the term “climate” means “meteorological conditions including temperature, precipitation, elements and wind that characteristically prevail in a particular region.” If your rental agreement or ads state that you have climate control, you are implying that you have usurped Mother Nature and have the ability to control the elements of your region including wind and rain.

This is not really what you’re doing. Instead, you’re regulating the heat and/or chill, perhaps even the humidity, which is actually “temperature/humidity control,” in the premises. If you are heating or cooling, you might want to call it “heated” or “cooled” space (not including humidity control).

Defining the Problem

We don’t have a national or state definition of what the term “climate control” or “temperature control” means, which is the root of the problem. Ambiguity always lends itself to misconceptions.

For example, let’s say a customer calls Facility A to get a price on a 10-by-10 climate-controlled unit. The owner responds with a positive sales pitch stating the site has heating and air-conditioning with redundant systems, meaning if one heater or air-conditioner breaks, there’s enough capacity in the secondary system to provide heating and AC until the main one is repaired. The facility is kept at a perfect 72 degrees, regardless of the weather, because it is so well insulated.

This facility has installed a state-of-the-art humidity-control system maintaining a perfect 54 percent relative humidity, whether the facility is heated, cooled or just running the fan. All systems are backed up by a natural gas-powered generator, so reliability is practically guaranteed. The operator says all this only costs $150 per month.

Now, the same customer calls Facility B and asks for the price on a 10-by-10 climate-controlled unit, which is $100 per month. But the second owners’ definition of climate control might mean he turns on a big exhaust fan to circulate the air when indoor temperatures rise above 90 degrees.

If the customer moves his goods into Facility B, he’ll probably be disappointed to later learn he is not getting the 72-degree, 54 percent-humidity year-round system backed up by generators like at Facility A. This is because the customer would likely have thought all facilities are climate-controlled the same way. The exception may be the services provided at Facility A. In fact, it’s likely that every facility has a different definition of climate control.

Disclosing the Solution

This is why it’s so important to disclose in your rental agreement what exactly you will be providing for the additional rent collected in the name of climate control. That is, what do you contractually agree is the definition of climate/temperature control? Either by rental agreement clause or addendum, you must advise the occupant what it is you will be providing: heating, cooling and/or humidity control.

Also, in some hot areas of the country, self-storage facilities use swamp coolers. These coolers merely keep the temperature inside the building about 10 degrees cooler than the outside ambient temperature; thus, it is hard to represent a temperature range that units will maintain.

Humidity controlled by air-conditioners running enough to keep the stored goods from being moist is something different than humidity control using a special system that adds or removes moisture year round. For all of these reasons, it is easy to see why the consumer could be confused by the term “climate control.”

Another problem is people sometimes rent climate-controlled units expecting their property will not get moldy. If you’re heating in the winter but not cooling in the summer, it’s possible for moisture to accumulate and cause mold. If you’re in a moist climate, the chance of mold is even greater.

Further, if someone brings damp or wet items into a self-storage unit, it really doesn’t matter how much climate or humidity control you have. A cold, dark unit is going to breed mold. Hence, you’ll need disclosure about mold, the possibility of its presence, and ways to avoid it during storage included in your rental agreement.

State Legislation

Undefined climate control has gotten the attention of several different state legislatures. While there are a few states considering the addition of definitions of temperature or climate control to self-storage statutes, only Nevada has a statute regarding the advertising of a climate control for storage of personal property:

The Statute provides: (1) the owner of a facility for the storage of personal property or a person acting on his behalf shall not advertise that the facility is “climate controlled” unless the advertisement specifies the range of the minimum and maximum temperature and humidity within which the facility is maintained; (2) if an owner or a person acting on his behalf fails to indicate the range of temperature and humidity of a facility in the advertisement that refers to it as being “climate controlled” or fails to maintain the temperature and humidity of the facility within the advertised range, the owner is guilty of a misdemeanor and is liable to the occupant for any damages that are caused to the occupant’s personal property as a result of the extremes in temperature or humidity not withstanding any contract provision in the rental agreement.”

This requires Nevada storage owners to state exactly what they mean by climate control, temperature or humidity control in any advertisement. If you fail to truthfully advertise what you mean by climate control, I believe civil sanction is warranted. I can’t agree that failure to advertise accurately or, worse, failure to maintain the proposed range of temperature or humidity stated in your advertisement should be deemed a criminal act, but it is in Nevada.

It’s only a matter of time before other states follow suit. Some are thinking about legislating the actual range of temperature and humidity that will earn a label of “climate controlled.”

While simply switching the use of term to “temperature controlled” may not avoid the problem completely, the phrases “temperature controlled,” “heated,” “cooled” or “humidity controlled” are more accurate and recommended for inclusion in agreements and advertisements. In addition, your rental agreement should have plenty of language to cover the possibilities that can occur if systems providing the temperature or climate control fail.

This language should also cover the potential eventualities of storms, hurricanes, tornadoes, blackouts, brownouts or other disasters that may befall your facility and prevent systems from working. For example, one storage operator in Gulf Shores, Ala., lost his roof to a hurricane right after opening. Obviously, his climate control was not functioning at that time.

The industry as a whole must work to define “climate control” and related terms before more unreasonable legislation is propagated.

This column is for the purpose of providing general legal insight into the self-storage field and should not be substituted for the advice of your own attorney.

Jeffrey Greenberger practices with the law firm of Katz, Greenberger & Norton LLP in Cincinnati. He primarily represents owners and operators of commercial real estate, including self-storage. He is the legal counsel for the Ohio Self Storage Owners Society and the Kentucky Self Storage Association. His website, www.selfstoragelegal.com, contains his legal opinions and insights into the self-storage industry, as well as an article archive. For more information, call 513.721.5151; e-mail jjg@kgnlaw.com.